{"id":84299,"date":"2018-12-20T15:16:16","date_gmt":"2018-12-20T22:16:16","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=84299"},"modified":"2018-12-22T05:38:20","modified_gmt":"2018-12-22T12:38:20","slug":"judicial-dictatorship","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2018\/12\/20\/judicial-dictatorship\/","title":{"rendered":"Judicial Dictatorship"},"content":{"rendered":"

By Charles S.Perera<\/em><\/span><\/h2>\n

There is a serious political and a social problem in Sri Lanka that hampers the democratic process , which lies in the question of democratic legitimacy of\u00a0 judicial reviews affecting the governance of the people. The US Constitution makes a point\u00a0 in stating that, it is the people that should decide\u00a0 how they are governed and the Constitutional norms that their society holds . The Judiciary having this power is illegitimate\u2026\u2026.\u201d.<\/strong><\/p>\n

In an interesting\u00a0 research article- a thesis on Judicial Dictatorship: Potential Institutionalisation of the Constitutional Review Process \u00a0by Stephen Cranney\u00a0 of the Faculty of Law, Victoria University of Wellington\u00a0 states \u00a0We the People.\u201d One of the most emotion evoking and potentially over used statements has found its way to the center of many democracy-based arguments in constitutional analysis. But if the \u2018people\u2019 are center to democracy and the social contract that democracy constructs, then how is it that their voice has become irrelevant?\u201d<\/p>\n

https:\/\/researcharchive.vuw.ac.nz\/xmlui\/bitstream\/handle\/10063\/4625\/thesis.pdf?sequence=2<\/a><\/p>\n

This \u00a0is very relevant to the surprising judgment of two courts in Sri Lanka, an Appeal Court and the Supreme Court \u00a0delivered\u00a0 in interpreting the relevant sections of the Constitution of Sri Lanka with regard to the decision taken by the President of Sri Lanka in a political imbroglio , to \u00a0dissolve the Parliament and go to the people for an election.<\/p>\n

The decisions of both the Appeal Court and the SC on the issues could be interpreted as judicial errors,\u00a0 and the interim order issued by the Appeal Court to \u00a0stop the Prime Minister and his Cabinet of Ministers functioning until the Appeal Court takes a decision, \u00a0an enormous Judicial error, perhaps a first in the world.<\/p>\n

As it was stated at the beginning there is a serious political and a social problem in Sri Lanka with the people divided into\u00a0 ordinary people largely Sinhala Buddhists ,and another English Educated mainly Colombian \u00a0high society. The latter group has a following\u00a0 of \u00a0the people depending on the rich and powerful and drawing their strength from them. Those were the people who were \u00a0seen recently \u00a0filling the Galle Face Green \u00a0for a gathering called for by the high society politicians<\/strong> .<\/p>\n

Mahinda Rajapakse and now\u00a0 Maithripala Sirisena belong to the ordinary Sinhala Buddhist population, and trusted, accepted, and loved by them.<\/p>\n

The high Society consisting more of the Judiciary, Company Directors , Doctors Engineers, Christians, Evangelists,and the English educated Colombians tend to shun Mahinda Rajapakse\u00a0 and now\u00a0 Maithripalan Sirisena. They\u00a0 have confidence\u00a0 on the political class led by Ranil Wickramasinghe , the UNP and their allied political parties\u00a0 belonging \u00a0to the high society, and their dependents. So are the \u00a0JVP \u00a0calling itself a Marist Party is perhaps trying to reach the high and powerful, while Sumanthiran of the TNA wants a federal constitution and the Eelam, and the rest of the Tamil and Muslim MPs are more keen following the rich and well to do in their sense as that helps their business sense.<\/p>\n

Therefore there is the \u00a0question where lies and who promotes the \u00a0democratic legitimacy of the people. Mahinda Rajapakse and his Ministers when they were sworn in on 26 Ocober,2018 was not seeking to take vengeance from his political enemies but keen in making the people benefit from their forming a government to give the people as much relief as possible.<\/p>\n

But it is the contrary\u00a0 when Ranil Wickramasinghe\u00a0 brings his Kiriellas, Ajith Pereras Champikas, Rajithas , Sarath Fosekas, Harin , and their partners in the JVP, to take over the government. It is for them \u00a0to take vengeance and take their political enemies\u00a0 to courts and prisons , making their lives miserable, rather than find means to give relief to the people as Mahinda Rajapakse did during the short time he was Prime Minister.<\/strong><\/p>\n

In the light of this high society UNP and the political partners who seems to care less for\u00a0 the people other than to get them to participate in manifestations and fill the grounds where they gather to shout their hatred of Mahinda Rajapakse and President Sirisena. But some how in this political jamboree the Judiciary also seem to play their part along with Ranil and the high society politicians.<\/p>\n

Sri Lanka\u2019s Judicial Independence is strange to tell the least. It is certainly independent of the Executive, but not completely independent of the\u00a0 Legislature\u00a0 with an evident support for \u00a0\u00a0the right wing\u00a0 legislators.\u00a0 It is certainly independent of the people,\u00a0 unconcerned about their suffering due to political mismanagement of the country by the right wing politicians of the Legislature, that was seen by the Appeal Court making an interim order suspending the functions of the social wing Prime Minister and his Cabinet thus denying the little relief the people were to receive.<\/p>\n

The President of Sri Lanka and the Parliamentarians are elected by the people and the people have confidence\u00a0 in them. However, they are able to show their preference \u00a0between \u00a0the high society \u00a0politicians led by Ranil Wickramasinghe and his political partners, \u00a0\u00a0and the Socialist politicians\u00a0 led by Mahinda Rajapakse and his parties supported by the President only at an election , but the SC denied them that democratic right ruling that the President cannot dissolve the Parliament for four and a half years.<\/p>\n

The two wings of the judiciary \u00a0the Appeal Court and the SC seem in my opinion \u00a0keen in putting the \u00a0Prime Minister Mahinda Rajapakse and President Sirisena, in their place making them understand that the Judiciary is above both of them, and they- the Judiciary have become a deciding factor and it is there with them \u00a0that the power lies.\u00a0\u00a0 Strangely the Judiciary can exercise this super power of theirs\u00a0 when a Constitutional review is demanded from them.<\/p>\n

A Constitutional Review is defined as the inquiry and decision of whether a piece of legislation is consistent with a constitutional norms\u201d.<\/p>\n

There are critical studies made on using the Judiciary with no political or democratic legitimacy as \u00a0the ultimate resort \u00a0to make Constitutional reviews. The article referred to above on Judicial Dictatorship, argues as follows:<\/p>\n

This power given to the courts, of the judicial review of legislation, involves a group of people who seemingly enjoy no political legitimacy and certainly no democratic legitimacy to impose their preferences on citizens generally. The judiciary\u2019s decisions work to thwart policies of the democratic branches of government. The individuals who strike down the legislation are both unelected and unaccountable. What they are effectively doing is invalidating democratically adopted laws.The question must be asked of how this role can be justified in a system that is based on the view that policy and value choices are for the elected and politically responsible institutions.\u201d<\/strong><\/p>\n

This paper argues that the underutilized organ of the executive can be employed to legitimise and solve many of the issues surrounding the constitutional review power that currently lies with the courts.<\/p>\n

The paper proposes three review mechanisms. Firstly, an executive override of judicial decisions, where the executive branch can return a piece of legislation that has been struck down to legal effectiveness. Secondly, a veto of constitutionally consequential legislation, where the executive can render a piece of legislation legally ineffective, coupled with an inability for a legislative override. Lastly, an executive mandate for judicial intervention, where the executive informs the judiciary which pieces of legislation can potentially be struck down. The paper expands of these descriptions, discussing potential problems that these methods face before finally defending one decision-making process. By this, the paper aims to satisfactorily create a stable and democratically legitimate constitutional review procedure<\/strong>.<\/p>\n

However, it appears correct that\u00a0 using the Judiciary for\u00a0 a Constitutional review is un-acceptable in terms of democratic legitimacy of a Judicial decision on a matter concerning the Constitution, as the Judiciary consists of men who are not elected by the people and unaccountable for their decision.<\/p>\n

A\u00a0 future Government should reconsider the question of Judicial independence, specially of its role in \u00a0Constitutional reviews in the interest of the people and the country. This is very important\u00a0 specially \u00a0in the case of Sri Lanka a Sinhala Buddhist Country with a culture as old as its history.\u00a0 It would not therefore be wrong to include in the Constitution that the Chief Justice should be a Sinhala Buddhist.<\/strong><\/p>\n

That would avoid the danger of electing some one like the retired Judge Wignesvaran as Chief Justice of Sri Lanka.\u00a0 It is not being extra nationalist, but when we see the role that is being played by the TNA MP Sumanthiran and Sampanthan with regard to writing\u00a0 a new Constitution and JVP wanting to have the President of the Country elected\u00a0 by the Parliament, the Sinhalese- the majority should remember that they have a responsibility to perpetuate both the\u00a0 Sinhala Buddhist Culture and\u00a0 its Buddhist\u00a0 religious background for the future generation of Sinhala Buddhists,\u00a0 as Sri Lanka is the only Country they have, which they can call their own.\u00a0 <\/strong><\/p>\n

We welcome Tamils and Muslims to be part of it without forgetting what Sri Lanka is and what it has given to all minority Communities that lived with the Sinhala \u00a0for thousands of years.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Charles S.Perera There is a serious political and a social problem in Sri Lanka that hampers the democratic process , which lies in the question of democratic legitimacy of\u00a0 judicial reviews affecting the governance of the people. The US Constitution makes a point\u00a0 in stating that, it is the people that should decide\u00a0 how […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[13],"tags":[],"class_list":["post-84299","post","type-post","status-publish","format-standard","hentry","category-charles"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/84299","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=84299"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/84299\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=84299"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=84299"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=84299"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}